Marquette Sports Law ReviewVolume 4Issue 2 Spring Article 5

Applying the First Amendment to Prayer in a PublicUniversity Locker Room: An Athlete's and Coach'sPerspectiveGil Fried

Lisa Bradley

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Repository CitationGil Fried and Lisa Bradley, Applying the First Amendment to Prayer in a Public University Locker Room: An Athlete's and Coach'sPerspective, 4 Marq. Sports L. J. 301 (1994)Available at: http://scholarship.law.marquette.edu/sportslaw/vol4/iss2/5

APPLYING THE FIRST AMENDMENT TOPRAYER IN A PUBLIC UNIVERSITY

LOCKER ROOM:AN ATHLETE'S AND COACH'S

PERSPECTIVE

GIL FRIED*

LISA BRADLEY

I. INTRODUCTION

Most athletes are familiar with the traditional pre-game prayers un-dertaken prior to athletic contests. Most athletes participate in theserituals without any thought as to the consequences or potential impact ofthe prayers on their teammates. Athletes often participate in these pre-game rituals out of habit or a sense of team unity. Others are forced toparticipate due to threats of reduced playing time or other coercive acts.An excellent example of the potential involvement of religion in thelocker room can be highlighted by events at the University of Colorado.At the University of Colorado, football coach Bill McCartney was ac-cused of publicizing his religious views and giving priority in hiring,recruiting, and playing time to individuals sharing his religious attitude.'While similar practices might have gone unchecked in the past, severalrecent Supreme Court decisions have limited the days of blind indiffer-ence to these rituals.

* Gil Fried, Esq. is the Director of the Sports Law Center, a division of Schachter, Kris-

toff, Orenstein, & Berkowitz of San Francisco, CA. Mr. Fried is an adjunct professor of sportlaw at the University of San Francisco. Mr. Fried specializes in sports employment, facilityand participant rights. Lisa Bradley is an associate with Schachter, Kristoff, Orenstein &Berkowitz in San Francisco, CA.

1. Peter Monaghan, Religion in a State-College Locker Room: Coach's Fervor raisesChurch-State Issue, 31 CHRON. HIGHER EDUC., 3, 37, 38 (1985). It should be noted that eventhough Mr. McCartney is a coach known for leading players in prayer, the practice has notslowed substantially during his thirteen years with the University of Colorado. Legal observ-ers felt that, "any hiring and recruiting practice that favored persons of a particular religiousbent would be vulnerable in a court of law, but they disagreed on the legality of prayer in statecollege football programs." Id. The American Civil Liberties Union's (ACLU) stance wasthat the injection of religion into a state-financed program violated the constitutional mandatefor a course of government neutrality toward religion. Id. See also, Peter Monaghan, U. ofColorado Football Coach Accused of Using His Position to Promote His Religious Views, 39CHRON. HIGHER EDUC. 12, November 11, 1992, A35, A37.

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Pre-game prayers are regularly held in public high school and univer-sity locker rooms throughout the United States. These rituals are oftenundertaken without any thought to possible legal consequences becausethe coach, team, or school have never received any complaints from con-cerned athletes or parents. However, the Supreme Court has recentlylimited the various avenues by which prayers can enter into publicschool activities.2

The First Amendment protects student-athletes by providing themwith certain safeguards against state endorsed adherence to a specificreligion, most often the coach's religion. This constitutional protectionmust be balanced against the coach's right to effectively run his or herteam without having every word or action scrutinized. The conflict ofprayer in a public university locker room centers on the students' right tobe free from state imposed religious indoctrination and the coach's rightto free speech. This conflict can be examined through the eyes of theFirst Amendment's Entanglement, Free Exercise and Free Speechclauses.

Courts have yet to specifically address the topic of prayer in a publicuniversity's locker room. Since there are no cases on point, this articlewill attempt to present the possible legal arguments that would bepresented by the two sides of this debate. The players' interest in prac-ticing their religion is weighed against a coach's right to motivate his/herteam. Both of these rights have to be examined in light of any actionundertaken or attributable to the state, and whether those actions consti-tute endorsement of the prayers by the state. Based on the present stateof intercollegiate athletics, the student-athletes' right to be protectedfrom religious indoctrination by a coach supersedes a coach's free speechright. However, voluntary, neutral moments of silence would neitherimpinge on a student-athlete's rights nor curtail a coach's right to effec-tively motivate his or her team.

II. THE ESTABLISHMENT SCALE FROM PUBLIC SCHOOL PRAYERTHROUGH PRAYER OPENING LEGISLATIVE SESSIONS

Team prayer in a public university locker room can be looked at as amorale booster and a tool to build team unity. Team prayer also re-quires the application of the First Amendment to protect the rights ofstudent-athletes opposed to or uncomfortable with the prayer. Even ifstudent-athletes do not object to the prayers, the prayers can constitute a

2. See infra text accompanying notes 27-39.

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violation of the First Amendment. The First Amendment's Establish-ment Clause "protects every individual's right to freedom of belief whilethe Free Exercise Clause protects the individual's freedom to practice his[or her] religion."'3 The Establishment Clause requires the state to be"neutral in its relations with groups of religious believers and non-believ-ers; it does not require the state to be their adversary. State power is nomore to be used so as to handicap religions then it is to favor them."'4

To help ensure a degree of separation between church and state, ametaphoric wall has been created by the courts.5 While the wall used tobe solid and straight, it has over the years become "serpentine," withsome bricks having fallen or having been knocked out, leaving largebreaches.6 The amount of protection the wall actually affords to collegeathletes can be demonstrated by analyzing an Establishment Clause caselaw scale from elementary school prayer to prayer opening legislativesessions cases. Falling in between these two ends of the continuum arehigh school and college prayer cases.

In an absolute sense, some relation between state and religion is in-evitable.7 The amount of permissible relations between government andreligion has been established by several major Supreme Court decisions.The current standard used to judge Establishment Clause issues is theLemon test. In Lemon v. Kurtzman,' the Supreme Court struck down astate salary supplement to non-public elementary school teachers be-cause funds would flow from the state to parochial schools, which in-volve substantial religious activity. In order to ensure neutrality, thegovernment would have to control the sectarian school programs.9 Stateaction passes the Lemon test if it has a secular legislative purpose. Inother words, the principal or primary effect of the law must neither ad-vance nor inhibit religion. Additionally, the law must not foster exces-sive government entanglement with religion.' 0

There have been several attempts to change the Lemon test, and theCourt has shown a predisposition over the past several years to adoptinga new standard. However, no new standard has been developed to re-

3. Malnak v. Yogi, 440 F. Supp. 1284, 1316, n.20 (D.C. N.J. 1977).4. Everson v. Board of Education, 330 U.S. 1, 18 (1947).5. Engel v. Vitale, 370 U.S. 421, 445-46 (1962) (Stewart, J., dissenting).6. THAYER S. WARSHAW, RELIGION, EDUCATION AND THE SUPREME COURT 12 (1979).7. In fact the Court requires both accommodation and the exercise of benevolent neutral-

ity. Id. at 28, See also Lynch v. Donnely, 465 U.S. 668 (1984).8. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).9. Id. at 619-20.10. Id. at 612-14.

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place the Lemon test.'1 Justices White, Scalia, and Rehnquist attackedthe Lemon test in County of Allegheny v. ACLU 2 as unduly limitinggovernment's involvement with religion, while Justice Kennedy arguedthat the Establishment Clause is violated only if the state literally createsa church or coerces religious participation. In contrast, Justices Black-mun and O'Connor argued that governmental action is invalid if the ac-tion symbolically endorses religion generally or a particular religionspecifically.

13

The Court's disposition in Establishment Clause cases was best ex-pressed by the Allegheny Court when it indicated that:

In the course of adjudicating specific cases, [the Supreme Court]has come to understand the Establishment Clause to mean thatgovernment may not promote or affiliate itself with any religiousdoctrine or organization, may not discriminate among persons onthe basis of their religious beliefs and practices, may not delegatea governmental power to a religious institution, and may not in-volve itself too deeply in such an institution's affairs.' 4

The hallmark of current analysis in Establishment Clause cases,based on the Court's rationale in Allegheny, is the determination of thedegree of entanglement between the governmental unit and the religiouspractice. Justice Blackmun's opinion in Allegheny set out the most logi-cal approach to determine if there has been excessive entanglement be-tween government and religious practices. This approach is the"reasonable observer" standard.' 5 Using this approach, a reasonable ob-server can examine whether an individual is forced into praying or if thestate acts in a manner that can be construed by the person being affectedas an endorsement of religion.16 Each Establishment Clause case hingeson an analysis of the level of governmental involvement and the percep-tion of governmental endorsement. By examining Establishment Clause

11. See generally County of Allegheny v. ACLU 492 U.S. 573 (1989), infra notes 12-15.The Court in 1993 received another opportunity to overturn the Lemon Test, but failed to doso. Lamb's Chapel v. Center Moriches School Dist., 113 S. Ct. 2141,124 L. Ed. 2d 352 (1993).Justice Antonio Scalia, a known Lemon critic, compared the test to a "ghoul in a late nighthorror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedlykilled and buried, Lemon stalks our Establishment Clause jurisprudence once again, frighten-ing the little children and school attorneys...." Id. at 365. Justice Scalia went on to allegethat the other justices had "driven pencils through the creature's heart" (in previous deci-sions), but had failed to bury it permanently. Id.

12. Allegheny, 492 U.S. at 606-07, 659-660.13. Id. at 620-21, 627-28.14. Id. at 590-91.15. Id. at 620.16. Id.

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cases from elementary schools, high schools, colleges, and public institu-tions, a scale can be established to help determine the amount of protec-tion which would be afforded to student-athletes in a public universitysetting. After analyzing the Establishment Clause scale, college athletesmight best be placed in between the rights of ordinary college studentsand those of employees at public institutions.'7

A. Elementary School

Engel v. Vitale 8 is a perfect example of a case determining theamount of interaction allowed between church and state in the contextof elementary school prayer. Engle involved a state law requiring therecitation of a prayer in public school classrooms.' 9 The Supreme Courtstruck down the state prayer by concluding that the prayer officially es-tablishes a state religion, even though the prayer was neutral on its faceand recitation of the prayer was voluntary.2" The prayer violated theEstablishment Clause because the prestige and financial support of thestate were used to support a particular religion.2' The respondents, in-tervenors, and the Board of Regents, as amicus curie, sought to distin-guish the school payer based on "our spiritual heritage."' Nonetheless,the Court concluded that the Establishment Clause did not indicate ahostility towards religion or prayer, but the prayer in the Engle case in-volved sponsorship of an unquestionable religious exercise, thus justify-ing the elimination of the prayer, even if its elimination ran afoul with"our spiritual heritage." 23

B. High School

The amount of government entanglement with religious exercise atthe high school level varies in different judicial districts. In Doe v. Al-

17. Analyzing prayer in a university locker room based on a scale of first amendmentdecision is not a new theory. A similar analytical approach to solving the problem of religionin the locker room was forwarded by R. Claire Guthrie, chairman of the continuing-legal-education committee of the National Association of College and University Attorneys. Ms.Guthrie stated that, "the question to ask should be where team prayers might fall along acontinuum between prayer in elementary and secondary schools and prayer before legislativesessions in states or the U.S. Congress." Monaghan, supra note 2.

18. Engel, 370 U.S. at 421.19. Id. at 422.20. Id. at 430.21. Id. at 431.22. Id at 425.23. Id. at 433-435.

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dine Independent School District,24 a Texas District Court held that theschool district's prayer violated the Establishment Clause. The courtheld that the singing of prayers before athletic contests, pep rallies, andgraduation, occurred at extracurricular events, on school property andthe prayers were state-initiated, encouraged and supervised.' However,in Stein v. Plainwell Community Schools, a Michigan District Court up-held similar prayers because the,

[P]roposed plans for graduation at high schools did not violateestablishment clause, where school districts were following longtradition of including invocations and benedictions in their cere-monies, had purpose of permitting students to plan or participatein their own commencement exercise, graduation ceremony wasnot mandatory part of school curriculum, speakers were otherthan school employees, contested prayers took only a few min-utes, were given only once a year, and reached different audienceeach time, graduation was not part of educational program ofschool, and there was no evidence that speakers intended to useinvocations and benedictions as opportunity to proselytize.2 6

A rash of graduation prayer cases exploded out of various courtsthroughout the 1980's and early 1990's.27 The Supreme Court's action indenying certiorari in the Jager v. Douglas County School District, casehelped reinforce the Lemon test and reduced the opportunities forprayer before high school football games. In Jager, the Eleventh Circuitstated that a constitutional challenge to the practice of giving invocationsprior to high school football games was not controlled by the Marsh v.Chambers case, but rather by the Lemon test.29 The court felt that thepre-game prayers had a religious purpose and the primary effect of ad-vancing religion.30 Even though there was no entanglement visible onthe face of the invocation practice, the use of the school's sound system

24. Doe v. Aldine Indep. Sch. Dist., 563 F. Supp. 883 (D.C. Tex. 1982). See also LubbockCivil Liberties Union v. Lubbock Indep. Sch. Dist., 669 F.2d 1038 (5th Cir. 1982).

25. Doe, 563 F. Supp. at 883-84.26. Stein v. Plainwell Community Sch., 610 F. Supp. 43, 44 (D.C. Mich. 1985). See also

Wood v. Mt. Lebanon Township Sch. Dist., 342 F. Supp. 1293 (W.D. Pa. 1972); Grossberg v.Deusebio, 380 F. Supp. 285 (D.C. Va. 1974).

27. Some of the key cases in this regard include: Jones v. Clear Creek, 977 F.2d 963 (5thCir. 1992); Lee v. Weisman, 120 L.Ed. 467 (1992); Friedmann v. Sheldon Comm. Sch. Dist.,995 F.2d 802 (8th Cir. 1993). See generally Henry J. Reske, Student-Led Prayers a ToughSubject, A.B.A.J., November 1993, at 20. See also supra note 26.

28. Jager v. Douglas County Sch. Dist., 862 F.2d 824 (11th Cir. 1989), cert. denied, May 30,1989 (88-1610).

29. Id. at 828. The Marsh case is discussed infra note 43 and accompanying text.30. Id. at 829-31.

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and the event being a school sponsored event, at a school owned facility,would convey a message that the school endorsed the religiousinvocation.3'

Since Jager, the high school prayer debate has been readdressed bythe Supreme Court, as well as several lower courts.32 Two recent cases,Lee v. Weisman and Jones v. Clear Creek33 , have clarified the constitu-tionality of middle/high school graduation prayers. The Weisman caseinvolved the Supreme Court's first foray into the middle/high schoolcommencement and graduation cases. In a 5-4 majority the Court heldthat a "religious exercise" at a middle school graduation was forbiddenby the Establishment Clause of the First Amendment.34 The case mir-rored a typical high school graduation prayer case. A rabbi was invitedby a middle school principal to give an invocation and a benediction atgraduation exercises.35 Plaintiff's challenged the prayer, claiming theprayer violated the First Amendment right to be free from state sponsor-ship of religion.36 The Court struck down the prayer based on the factthe school helped control the content of the prayer, the obligatory na-ture of the ceremony, and the government involvement which was per-vasive to the point of creating a state-sponsored and directed religiousexercise in a public school.37

The Court concluded that the constitution "forbids the state to exactreligious conformity from a student as the price of attending her ownhigh school graduation. ' 38 The Court's decision was based on law asmuch as the understanding that societal and peer pressure combinedwith the graduation tradition would create an environment where stu-dents would not want to miss their graduation.39

In Jones v. Clear Creek, the Fifth Circuit upheld the constitutionalityof a school district resolution that allowed senior high school students tovote on whether or not they wanted to allow student-led prayers at theschool's graduation.4" The difference between the Weisman and theJones case is the amount of governmental entanglement. In Weisman,

31. Id. at 831.32. See generally supra note 28 and accompanying text.33. See supra note 28.34. Weisman, 120 L Ed. 2d 467, 487.35. Id. at 476.36. Id. at 478.37. Id. at 480.38. Id. at 486.39. Md at 484-5.40. Jones, 977 F.2d at 971-2. See also Reske, supra note 27, citing, ACLU v. Blackhorse

Pike Regional Board of Education, No. 93-5368 (3d Cir. 1993), wherein the Third Circuit felt

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the school chose the prayer and the deliverer, while in Jones the studentsmade their own decision.

C. Colleges

Elementary and high school cases can be distinguished from Estab-lishment Clause cases at the college level because of the maturity of thestudent. College cases deal primarily with the development and imple-mentation of religious activities by individual administrators or moremature students. The Supreme Court concluded in Tilton v. Richardsonthat the college student is more mature than other students and that col-lege students are less impressionable and susceptible to religiousindoctrination.

41

D. Public Institutions

In Marsh v. Chambers,4' the Supreme Court analyzed the constitu-tionality of a paid legislative chaplain and prayers opening the start ofeach Nebraska Legislature session. Former Chief Justice Burger con-cluded that the practice of legislative and other bodies opening their ses-sions with prayer is "deeply embedded in the history and tradition of thiscountry. '43 The difference between Marsh and the various school prayercases lies in the age of the person exposed to the religious message andtheir perception of the religious activity. In Marsh the individual claim-ing injury by the practice was an adult who was "presumably not readilysusceptible to religious indoctrination... or peer pressure."' It shouldbe understood, however, that the Marsh court reached its decision not

that delegating the decision to hold prayers to the students did not alter the fact that gradua-tion was a school sponsored event.

41. Tilton v. Richardson, 403 U.S. 672, 686 (1971). See also Roemer v. Board of PublicWorks of Maryland, 426 U.S. 736, 750 (1976).

College students, as well as any other individuals, can face discrimination in a variety ofcontexts which can include religious discrimination. One of the claims in Bath v. NAIA, 843F.2d 1315, 1316 (10th Cir. 1988), was for a civil rights violation based on the practice ofpregame prayers at Mesa College. The claim was made under 42 U.S.C. Section 1983 andTitle VI of the Civil Rights Act of 1964,42 U.S.C. Section 2000d et seq., but the claim was notdecided because the prayer issue was non-justiciable. Id. at 1317.

42. Marsh, Nebraska State Treasurer v. Chambers, 463 U.S. 783 (1983). See also Bogen v.Doty, 598 F.2d 1110 (1979); Marsa v. Wernik, 430 A.2d 888 (S.C. NJ 1981); Lincoln v. Page,241 A.2d 799, 109 N.H. 30 (1968).

43. Marsh, 463 U.S. at 783.44. Id. at 792.

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by applying the Lemon test, but rather by analyzing the historicalgrounds of prayer opening legislative sessions.'

The cases used to create an Establishment Clause scale of decisionsaffecting schools and public institutions help expose several importantconcerns. While the Supreme Court has taken several shots at theLemon test, it still is alive and the law of the land. Likewise, theSupreme Court has indicated that the historical precedence of certainprayers helps reinforce the validity of other prayers, especially beforemature audiences. Somewhere between governmental acquiescence andattempted religious indoctrination lies the case of prayer in a public uni-versity locker room.

E. Free Exercise Clause

Besides examining potential violations of the Establishment Clause,it is also possible for a prayer in a university locker room to violate theFree Exercise clause of the First Amendment. In Engel, the SupremeCourt concluded that "indirect coercive pressure upon religious minori-ties to conform to the prevailing officially approved religion" cannot beconstitutionally tolerated.46

An encompassing theme of the Religion Clause is protection of reli-gious minorities from the religious majority no matter how much theprotection offends the majority.47 The Constitution states that religiousliberties are values that deserve a high degree of protection.48 Under theFree Exercise clause students must be given the option of what religiousmessage they want to be exposed to without coercive pressure being sub-tly applied. In the locker room, student-athletes might not have thatchoice. If freedom of religion has any meaning, it is that people, espe-cially religious minorities, have the right to practice their religion or be-liefs without government interference. If locker room prayers force anathlete to make a choice between their religion and the religion of thestate, then the Free Exercise Clause is violated.

45. Id. at 786. Historical grounds is often argued as a rationale for prayer at various levelsof public schools. See generally supra note 23 and 26.

46. Engel, 370 U.S. at 431. See generally The Religious Freedom Restoration Act of 1993which limits the amount and extent of government involvement in burdening a person's exer-cise of their religion. CQ US HR 1308.

47. The Court struck down the in-class reading of the Bible in Abington School District,infra note 73. The Reverend Dr. Billy Graham declared the decision, "a penalty for the'eighty percent [of Americans who] want Bible reading and prayers in school.' "LEO PFrrER,GOD, CAESAR, AND THE CONSTITUTION 210 (1975).

48. Warshaw, supra note 6, at 9.

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III. APPLYING THE SCALE TO STUDENT-ATHLETES

University students have been fighting for their constitutional rightsfor years. Constitutional protections for university students have tradi-tionally been minimal because the Supreme Court considered attend-ance at a university a privilege, not a right; thus, students did not requireextensive constitutional protections.49 The Supreme Court in the pivotaldiscrimination case of Brown v. Board of Education"° increased theamount of constitutional protection afforded to all students by conclud-ing that educational opportunity is not a privilege, but a right safe-guarded by the Fourteenth Amendment. The advancement of students'First Amendment rights was best expressed by Justice Powell in Healy v.James, when he asserted that, "state colleges and universities are not en-claves immune from the sweep of the First Amendment.""1 However,even with the advancement of the general student body's rights, one sec-tion of the student body has lagged far behind. This group is made up ofwhat are perhaps the most rigidly controlled students on the campus-student-athletes.5

2

Most college students live a life free of unusual burdens or controlsimposed by their colleges. Most students can choose which classes theywant to take, with whom they can associate, what time they will to go tobed, when and what they can eat, and numerous other personal deci-sions. College athletes on the other hand, especially in the major col-legiate sports of football and basketball, often lack these fundamentalrights. Sports psychologist J. Scott observed;

[T]he athlete lives in a world where one misplaced word or actionoften threatens the immediate end of his athletic career. FromLittle League baseball through professional football, the correctattitude is as important as actual athletic skill, and once an athleteis labeled a troublemaker or uncoachable, his athletic career is

49. "Courts tended to look upon attendance at a public college or university as a privi-lege, not a constitutional right from which it followed that the institution was to insist uponwhatever binding conditions of behavior it deemed appropriate." David Fellman, Religion, theState, and the Public University, RELIGION AND THE STATE 303 (1975). See also Hamilton v.Regents of the University of California, 293 U.S. 245 (1934); Waugh v. Board of Trustees ofUniversity of Mississippi, 237 U.S. 589 (1915); Steier v. New York State Education Comm'n,271 F.2d 13 (2nd Cir. 1959).

50. Fellman, supra note 49, at 304, citing Brown v. Board of Education, 347 U.S. 483, 493(1954).

51. Healy v. James, 408 U.S. 169, 180 (1972). See also Lansdale v. 'Tyler Junior College,470 F.2d 659, 664 (5th Cir. 1972); Tinker v. Des Moines School District 393 U.S. 503, 506(1969).

52. Robert L. McGahey, Jr., A Comment on the First Amendment and the Scholar-Athlete,6 HUM. RTs. Q. 155 (1976-77).

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usually doomed. For many years athletes perceived themselves asbeing in a powerless position within the sports world, and likemost power-less groups they survived by deferring to authorities-coaches, athletic directors, and professional team owners.53

A coach's authority over an athlete can extend to determining theathlete's choice of degree programs or the type of person with whom theathlete can associate. Athletes used to be unwilling to challenge acoach's authority because they could have their scholarship revoked orthey could be "benched." The student-athlete's fear of retaliation helpsexplain the relatively minimal number of grievances brought by student-athletes.54

While the athletes as a group still defer to their coaches, cracks arebeginning to appear in coaches' armor. The 1993 collegiate sports sea-son was a watershed year for athlete's rights. Student-athletes exertedtheir strength and brought reform or changes to several programs. Themost notable of these occurrences include: Morgan State Universitywhich canceled the last football game of the season when the playersthreatened a halftime protest to demand the dismissal of the head coach;the University of Maryland at College Park, where the men's soccerteam signed a petition asking for the removal of the head coach, whoresigned one week later; and football players at Memphis State Univer-sity and Georgia Institute of Technology publicly clashed with theircoaches after suffering tough losses.5 5 As noted in one sports businesspublication, "players are far less likely to bow to the authority of theircoaches than they might have a decade ago. '56

While some student-athletes have found the strength to exert theirrights, these students are normally the exception to the rule. Most stu-dent-athletes defer to coaches because coaches are often their closestassociates, mentors, and teachers. A student-athlete may feel closer to acoach than any other older person and they frequently seek parentaltype assistance from that coach.57 The high pressured, win-at-all-cost,

53. Id. at 157, citing J. SCOTT, THE ATHLETIC REVOLUTION 66 (1971).54. Id. See infra note 69-71 and accompanying text. The attorney in the Memphis State

locker room dispute commenting on why football players were reluctant to come forwardstated, "[lit is clear that personnel on athletic scholarships are not going to complain." Farrell,Memphis State Coach is Accused of Imposing Religious Beliefs on Players, 29 THE CHRONICLEOF HIGHER EDUCATION 6, 26 (1984).

55. Debra E. Blum, Series of Locker-Room Revolts Has Some Wondering About the Cloutof Athletes, 39 CHRON. OF HIGHER EDUC., February 10, 1993, 23, A35-36.

56. Rick Berg, Motivation or Abuse, ATHLETIC BUSINESS, June 1993, at 9.57. Harry M. Cross, The College Athlete and the Institution, 38 LAW AND CONTEMPORARY

PROBLEMS 150, 168-169 (1973). The fatherly/motherly position is often created due to the

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atmosphere of some athletic programs exerts tremendous pressure onstudent-athletes, and their coaches are often their sounding board aswell as their emotional and psychological crutch.

To determine how much interaction is allowed between the univer-sity and prayer, the university's support of the prayer has to be examinedalong with the coach's rights, the need for governmental monitoring andthe potential impression created by the university endorsing the prayers.

Prayer in the locker room can be distinguished from the prayer re-ferred to in the high school graduation cases because: college athletesare normally required to participate, the coach is a school employee, thesame audience is addressed each time, a small controlled audience is in-volved instead of a large crowd, the prayer is part of the official schoolprogram and the result of the prayer can lead a reasonable observer toconclude that the state is endorsing religion.58

As sports sociologist Jay Coakley concluded, religion's role in sportsometimes seems to be targeted solely to the advancement of the reli-gious values of a certain individual at the expense of others.59 A "nopray/no play" rule is instituted by a coach to force acceptance of a cer-tain belief or face repercussions including reduced or no playing time."No pray/no play" rules violate the Free Exercise and EstablishmentClauses because a student is forced to choose between his religion andthe coach's religion. "No pray/no play" rules are the simpler cases be-cause there is direct pressure and coercion to violate one's religious be-liefs. The more difficult cases are those of indirect pressure.

While a "no pray/no play" rule is clearly a First Amendment viola-tion in a public university locker room, a non-religious moment of si-lence represents a more acceptable position. Moments of silence can beused to bring prayer into the locker room in a manner that might notexert pressure on a student-athlete to choose between religion and non-religion. Moments of silence are effective because coaches and otherathletes will not know whether the athlete used the silent moment forprayer, inner reflection, or just relaxation.

Anything more than a voluntary moment of silence for inner reflec-tion would require stricter adherence to the First Amendment, due tothe potential for peer pressure. Besides the coercive authority exercisedby a coach in endorsing prayer, the peer pressure put on the athletes to

student-athlete being away from his/her parents for the first time when they enter the pressurefilled environment of a university athletic program.

58. See generally Stein, supra note 26; Doe, supra note 25.59. Jay J. Coakley, SPORT IN SOCIETY: ISSUES AND CONTROVERSIES 288-289 (1982).

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be "team players" can deprive student-athletes of the choice of whetheror not to participate in the prayer. Being branded uncoachable by acoach can be a difficult stigma to overcome, but an athlete that is notconsidered a "team player" by his fellow athletes is often in a worseposition than someone that is considered uncoachable. Peer pressurecan generate a social stigma for those bucking the trend. Other athletesmight view non-compliance as an indication of a lack of willingness tocooperate with other athletes on the field.

Even absent coercion by the state, the impact of peer pressure toler-ated by the state can implicate the state.61 Peer pressure can be analo-gized to being in a captive audience.6' The negative impressions of anathlete's teammates can force an athlete into participating in prayers. Inanalyzing the effect of prayers on adults in opening legislative sessions,the court concluded in Marsh that an adult was "presumably not readilysusceptible to religious indoctrination.. .or peer pressure."'6 This view isnot uniformly accepted across the judicial bench. Justice Douglas statedit best in his Engle concurrence when he concluded that if there wascoercion in the school prayer, then there would be coercion in theprayers opening up Congress because few people would leave whilethose prayers are going on. The audience is in a sense, a "captive" audi-ence, because the stigma attached to leaving a prayer opening congress ismost likely severe.63 A greater stigma attaches to the very visible act ofleaving a locker room while one's teammates are united in prayer. Acollege locker room and athletic team are normally smaller than a largelegislative assembly hall filled with hundreds of legislators. Thus, if astudent-athlete did not participate in a prayer, that fact would probablybe quite evident to everyone on the team.

Based on the First Amendment restrictions imposed on state actionswhich tend to endorse and put the power and prestige of the state be-hind religion, "no pray/no play" rules would be held unconstitutional.Likewise, any active involvement by the state in locker room prayers willsound the alarm of a First Amendment violation. Thus, the safest ap-proach to allowing prayer in a locker room would be voluntary momentsof silence.

60. See generally Mergens, infra note 108. As indicated in Brandon v. Board of Educ., 635F.2d 971, 978 (1980), an adolescent may perceive a voluntary school prayer in a different lightif he/she saw the teams football captain or other popular individuals on campus participatingin communal prayer meetings in the captive audience forum of a school.

61. Marsh, 463 U.S. at 792. See also Jager, 862 F.2d at 828.62. Id63. Engel, 370 U.S. at 442.

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IV. COACHES' RIGHTS

A public university is an agency of the state and the public universityemployees, acting in their capacity as employees, are also agents of thestate.64 Thus, the actions of a coach, executing his or her job, areequivalent to state action. Justice Douglas, in his Engle concurrence,compared school prayer to prayer opening Congress each morning andfelt that both prayers would violate the Establishment Clause because ineach instance the person praying is a public official, on the public pay-roll, performing a religious exercise in a governmental institution.65 Apublic university athletic coach is traditionally a public official, on thepublic payroll and a locker room is part of a government facility.66

Based on the involvement of a state employee at a state facility during astate sponsored event, there is an over abundance of indicia demonstrat-ing governmental entanglement with prayers in a public university'slocker room.

Nevertheless, a coach could argue that team unifying prayers are anessential element required to effectively perform his/her coaching re-sponsibilities. Some of the responsibilities of a coach include: the edu-cating of his/her players in the playing rules and attendance penalties, topromote the welfare of the sport in an honorable way, instilling in theplayer a desire to win, and improving the player in the technique of thesport.

67

In Dunham v. Pulsifer, a case involving an unconstitutional athleticgrooming code, the Vermont District Court stressed the importance ofteam discipline when it stated that:

The coach must be able to control within reasonable limits thoseaspects of a player's behavior which relate to his performance as acontributing member of the team... The coach's right to regulatethe lives of his team members does have limits, however. A coachmay not demand obedience to a rule which does not in some wayfurther other proper objectives of participation and performance.It is bootstrap reasoning indeed to say that disobedience of anyrule weakens the coach's authority or shows a lack of desire on

64. Breen v. Runkel, 614 F. Supp. 355, 358 (D.C. Mich. 1985).65. Engel, 370 U.S. at 441.66. This assumption applies to both paid and volunteer coaches, as volunteer coaches are

still supervised by state actors the same as paid coaches or athletic administrators.67. Cross, supra note 57, at 167. See also PHILLIP S. SLOAN, THE ATHLETE AND THE LAW

13 (1983); Omar S. Parker, The Authority of a College Coach: A Legal Analysis, 49 OR. L.REv. 442, 449-50 (1970).

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the part of the competitor thus justifying disobedience to any rulehowever arbitrary.68

One such arbitrary rule is a "no pray/no play" rule. At MemphisState University, several football players alleged that the coaches werenot just espousing their personal belief, they were subtly (and not sosubtly), "attempting to convert the student-athletes to Christianity, to besaved, to be part of the Born-Again movement."6 9 Ray Dempsey, thefootball coach, held mandatory prayer meetings and, if the student-ath-lete did not pray, he did not play.7° The ACLU was considering legalaction on behalf of the players until the university reprimanded thecoach for violating state educational rules on religious activity.71

Coaches often argue that team prayers help unite the team, which isan essential task in a team sport such as football. The school district inDoe contended that prayers served the clearly secular purpose of instil-ling a sense of school spirit and pride in the students.72 The Doe court,relying on Abington School District v. Schempp,73 found the school dis-trict's purpose in conflict with the requirement of secular purpose be-cause a state cannot seek to advance non-religious goals and valuesthrough religious means.74 A coach should accomplish the goal of teamunity in a less intrusive manner, because the continuation of prayer im-permissibly puts the power and prestige of the state behind a certainreligion. Team unity, team spirit, and team "psyching" can be accom-plished through non-religious means, therefore a "no pray/no play" pol-icy becomes an arbitrary rule that students should not have to follow.Preaching might help instill team unity, but accomplishing team unity bycoercing a religious minority to undertake activities inconsistent withthat person's own belief is unconstitutional.

V. FREE SPEECH

Freedom of expression is a vital part of the educational process."Thus, educational speech is afforded comprehensive First Amendment

68. Dunham v. Pulsifer, 312 F. Supp. 411, 420 (D.C. Vt. 1970).69. Farrell, supra note 54, at 26.70. Id.71. Monaghan, supra note 1, at 38.72. Doe, 563 F. Supp. at 886.73. Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963).74. Doe, 563 F. Supp. at 886. See also D. H. white, Annotation, What Constitutes

"Prayer" Under Federal Constitutional Prohibition of Prayer in Public Schools, 30 ALR 3d1352, 1353 (1994).

75. McGahey, supra note 52, at 159.

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protection. On the whole, "neither the state in general, nor the univer-sity in particular, is free to prohibit any kind of expression because itdoes not like what is being said."'76 The state, however, can still regulatecertain speech if there is an overriding state interest,77 and the regulationis reasonable.78

In the context of the Religious Clauses, the suppression of religiousspeech is very limited. As the Supreme Court in Bender v. Williamsportstated, "it is common ground that nothing in the Establishment Clauserequires the state to suppress a person's speech merely because the con-tent of the speech is religious in character. '79 Nonetheless, universitieshave censored religious speech in the past, based on EstablishmentClause concerns.80

The leading case involving student-athletes and the EstablishmentClause focuses on the permissibility of censoring political/religiousspeech. The Williams v. Eaton series of cases involved a group of blackathletes that were dismissed from the University of Wyoming footballteam following a dispute over the players' intentions to wear black arm-bands during a game against Brigham Young University.81 The TenthCircuit concluded that the only reason for wearing the armbands was toprotest the religious views of the Mormon Church, and if the athleteswere allowed to display the armbands, their action would violate the Es-tablishment Clause.82 The court further concluded that the universitytrustees' decision was reasonable because there was strong support for apolicy restricting hostile expression against religious beliefs of others byrepresentatives of a state or its agencies.8 3

If courts are willing to go as far as to regulate student-athletes' ex-pression as representatives of the state it would only seem reasonable

76. Charles Alan Wright, The Constitution on the Campus, 22 VAN. L. Rnv. 5, 1027, 1039(1969).

77. Id. at 1055.78. Id. at 1043. See also Widmar v. Vincent, 454 U.S. 263 (1981).79. Bender v. Williamsport Area School District, 475 U.S. 534,552 (1986). The dissent in

Widmar did not deny that speech about religion was protected by the First Amendment, how-ever, they argued that "religious worship," in contrast to secular speech about religion, is notspeech generally protected by the free speech guarantees of the First Amendment. Widmar,454 U.S. at 269, n. 6.

80. See Williams, infra note 81; Lynch, infra note 85.81. Williams v. Eaton, 310 F. Supp. 1342 (D. Wyo. 1970), 443 F.2d 422 (10th Cir. 1971),

333 F. Supp. 107 (D. Wyo. 1971), 468 F.2d 1079 (10th Cir. 1972).82. Williams, 468 F.2d at 1081-84.83. Id. at 1083. It is important to note the timing of the Williams case. The political

unrest and threat of student protest might have pressured the courts to expand the scope of auniversity's ability to quell potential student unrest.

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that coaches, who are state employees, could also be regulated. The sup-pression of a coach's religious speech that violates the EstablishmentClause has to be considered at least as reasonable as the logic used bythe university trustees to suppress the activities in Williams.'

Due to the position of authority occupied by a coach, few, if any,student-athletes would try to disobey or argue with the coach's policy.Thus, for a coach serving as a teacher, administrator, or preacher, thecollegiate locker room provides an unparalleled opportunity for the im-position of religious values on a captive audience. Public university em-ployees do not have a carte blanche right to impose religious values on acaptive audience. In Lynch v. Indiana State University, the IndianaCourt of Appeals held that a policy of a public university permitting ateacher of a non-religious subject to introduce religious indoctrinationinto the classroom is violative of its religious neutrality under the Estab-lishment Clause." The court concluded that even though the reading ofthe Bible was voluntary, there was still the element of coercion in light ofthe supervisory position of control occupied by the instructor over stu-dent grades and conduct.8 6 The plight of a student-athlete would bemore severe than that of a math student because the student-athlete nor-mally spends several hours every day with a coach, instead of just one ortwo hours every couple of days with a math instructor.

In addition to relying on judicial decisions, some states have beensuccessful in limiting a teacher or coach's religious speech through ordi-nances. Such a statute was used by Memphis State University to limitthe religious speech of Coach Dempsey. The Tennessee Statute providesfor a period of silence in public schools "to prepare themselves for theactivities of the day."' However, the statute further stated that, "noth-ing contained in this section shall authorize any teacher or other schoolauthority to prescribe the form or content of any prayer."88

A coach could try to institute a prayer led by a student, priest, rabbi,or by no one, however, the lack of a leader that can be associated withthe state does not, in itself, dismiss potential state action. The use of thestate owned locker room and state sponsorship of athletics provides a

84. Widmar, 454 U.S. at 276. See also Breen, 614 F. Supp. at 359, where the court con-cluded that rights under the Free Speech Clause may be limited by strictures that the Estab-lishment Clause places on state institutions.

85. Lynch v. Indiana State University Board of Trustees, 378 N.E. 2d 900 (Ind. App.1978), cert. denied, 441 U.S. 946 (1978).

86. Id. at 903.87. TENN. CODE ANN. section 49-6-1004 (a) (1983).88. TENN. CODE ANN. section 49-6-1004 (b) (1983).

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sufficient nexus to implicate the state.8 9 Voluntary participation inprayers also does not provide the coach with a strong defense, becauseeven if a prayer is voluntary the state action of endorsing a specific reli-gion is unconstitutional. 90

The problem with practices that are secular in nature and voluntaryin application is that they can quickly become religious and non-volun-tary. To ensure a coach does not use the locker room as a forum forforced indoctrination would require governmental monitoring of theprayers. 91 Two major questions asked in Establishment Clause cases iswhether the governmental involvement is excessive; and, whether theinvolvement is a continuing one calling for official and continuing sur-veillance leading to an impermissible degree of entanglement. 2 The in-clusion of the state as a religious monitor of the coach's actions willimpermissibly entangle the state with religion.

Due to the fact that any prayer adopted by, led by, or enforced by apublic university athletic coach can run afoul of the First Amendment,universities have to explore other options to allow team prayer in a-pub-lic university locker room. To help overcome the potential stigma of acoach led prayer, the coach could either institute a moment of silence forpursuing whatever interest the student-athletes might have, casuallymention religion without advocating prayer, or open the locker roominto a public, forum. A coach's strongest argument would ,be the devel-opment of a moment of silence for pursuing purely secular objectives. Ifthe coach can prove that no religion was mentioned and the activity wasdesigned to build team unity, then the practice would not violate theEstablishment Clause.93

A. Silent Prayer

Silent prayers adopted by the students themselves or instituted by thestate for purely secular reasons, can provide the environment where in-dividual reflection or prayer can thrive in the locker room without impli-cating the state or the coach in religious activities. Silent prayers that aresponsored by the government, however, can still violate the Establish-

89. See Weisman, supra note 37.90. "The [e]stablishment [c]lause focuses on the constitutionality of the state action, not

on the choices made by the complaining individual." Jager, 862 F.2d at 832. See also Engle,370 U.S. at 430, n.77.

91. Lemon, 403 U.S. at 619.92. Walz v. Tax Commission, 397 U.S. 664, 675 (1970), cited in Dayton Christian Schools,

Inc. v. Ohio Civil Rights Comm'n., 766 F. 2d 932, 957 (6th Cir. 1985).93. See generally Wallace v. Jaffe, 472 U.S. 38, 67 (1985) (O'Connor, J., concurrence).

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ment Clause. In Wallace v. Jaffe, the Supreme Court held that an Ala-bama Statute which authorized a one minute period of silence in allpublic schools "for meditation or voluntary prayer" was a law respectingthe establishment of religion.94 The statute was struck down because itdid not have a secular purpose and the motivation for passing the statutewas to advance religion.95 To be a valid moment of silence, the practicehas to be adopted with purely secular intentions.96 Some states haveadopted valid moments of silence statues by including in the statutes thatthe purpose of the silent moment is to help settle down the students.97

B. Casual Communication

A coach has the inherent right to bring the athletes into a huddle andask them to think about what it means to be playing in the game. Noth-ing in the First Amendment says that a state employee can never use theword God.98 The coach could also tell the athletes that "through thegrace of God no one will get injured." A statement of this sort, and inthis context, would not be considered religious indoctrination, but rathera polite remark. While technically there might not be a First Amend-ment violation from causally mentioning the word God, if a mere men-tion starts sounding like a prayer, governmental entanglement in havingto monitor the speech could violate the Establishment Clause.

C. Equal Access

If a coach allows a different religious group to pray before eachgame, under the equal access theory, this practice could be valid. Theequal access theory has been examined by the Supreme Court in boththe university and high school context. In Widmar v. Vincent, a studentgroup sued the university for the right to use state facilities for religiousreasons under the free exercise and free speech clauses.99 The Courtconcluded that the Establishment Clause does not bar a policy of equalaccess for a religious club when university facilities are open to all other

94. Id. at 61.95. Id. at 56-7.96. See generally Wallace, 472 U.S. at 67 (O'Connor, J., concurrence).97. See Abington, supra and accompanying text note 73. See also Wallace, 472 U.S. at 71.98. The coach has to be very careful, even if the name of God is not used, because the

statement still might be considered a religious prayer. Thus the use of the term God is notdispositive of what constitutes a prayer, rather the idea or intention of the statement is thecontrolling factor. See generally Annotation, supra note 74, at 1353, citing De Spain v. DeKalb County Community Sch. Dist., 384 F.2d 836 (7th Cir. 1967), cert. denied, 390 U.S. 906(1967).

99. Widmar, 454 U.S. at 263.

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student groups.' The Court concluded that if a university creates a fo-rum generally open for use by student groups, it cannot discriminateagainst groups based on the content of their speech.10 1 Thus an "EqualAccess" policy is not incompatible with the Establishment Clause.10 2

In 1984 the Equal Access Act was passed to apply the Widmar hold-ing to high schools. 1 3 In analyzing the constitutionality of the EqualAccess Act, the Supreme Court in Board of Education of the WestsideCommunity School v. Mergens upheld the constitutionality of the actbased on the act's requirement that there be, "a limited open forum, theorganization has to be a non-curriculum related group, and state em-ployees can only attend in a non-participatory capacity."'" The Courtconcluded that the high school could allow the religious club to useschool facilities like any other group in the limited open forum. 0 5 TheCourt defined a limited open forum as a noncurriculum related studentgroup that meets on school premises during noninstitutional time.'0 6 Inhis concurrence Justice Marshall thought that the plurality's reliance onWidmar was inappropriate because the university took concrete steps todisassociate the university's name from the religious program; and forthe religious club in Mergens to be valid, the high school would have totake similar steps to "fully disassociate" itself from the religiousprogram. 7

One of the most important aspects of the Supreme Court's decisionin Mergens is the realization that the Religious Clause violation wasbrought about by indirect school sponsorship of peer pressure. JusticeO'Connor felt that even though attendance at the meeting was notmandatory, there still remained the "possibility of student peer pres-sure."'0 8 The potential for peer pressure, along with the potential neces-sity for governmental monitoring to ensure equal access, makes theoption of opening the locker room into a public forum less attractivethan silent prayers.

100. Id. at 263. The Court in Lamb's Chapel required all schools to either open theirfacilities to the broadest array of groups or to none at all. Lamb's Chapel, 124 L. Ed. 2d at361-2

101. Widmar, 454 U.S. at 269-70.102. Id. at 270-75.103. Board of Education of Westside Community Schools v. Mergens, 496 U.S. 226, 235

(1990).104, Id. at 233.105. Id. at 239.106. Id. at 235.107. Id. at 266-67.108. Id. at 251.

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VI. CONCLUSION

Prayer is a topic close to the hearts of most Americans. The majoritymight not have any problem with prayers in their children's locker room,but religious minorities might have a problem with this practice. TheFirst Amendment was designed to protect these minorities.

Prayer in a public university locker room violates the EstablishmentClause because the prayers take place in a state facility, during a stateactivity, and are normally led by a state official. College students aremore mature than high school students, therefore, college students areless susceptible to peer pressure and more capable of comprehendingthat the prayers do not indicate state support for religion. The authorita-tive position held by the coach and the restraints involved in athletics,however, does require public universities to provide student-athleteswith a higher level of protection than regular college students. Based onthe current sense of power exhibited by some college athletes, there ap-pears to exist a new breed of student-athletes willing, and sometimeseager, to exert their rights through strikes, boycotts, or other actions.While some college athletes have been able to lash-out against their for-mer coaches, the majority of student-athletes dare not raise a single ob-jection to the conduct or actions of their coach or institution.

College athletes are, on a whole, in a rigidly supervised environmentthat is controlled by a state agent, therefore, college athletes should havea level of protection comparable to the protection afforded to middle/high school students in First Amendment cases. If a team prayer is led,monitored, or supervised by a coach, the coach's free speech right has tobe suspended to avoid entanglement. However, based on the Weismanand Jones cases, if there is no state endorsement or entanglement or ifthe team prayers are implemented and controlled by the athletes them-selves without state assistance, the prayers will not violate the Establish-ment Clause.

Coaches still have at least one Hail Mary left in their arsenal. Prayercould still be utilized in a public university locker room if the coachadopts a neutral policy for a moment of silence before a game for indi-vidual reflection. This practice will be valid as long as all student-ath-letes are given the option of choosing their own actions during the silentperiod.

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